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Service Charges in Commercial Properties

Jon Durham

Commercial property is an important area of the UK economy and service charges can be a major outlay for tenants. Poorly managed services are a frequent cause of disputes between commercial landlords and tenants. RICS has led a cross industry steering group in devising a new Code (RICS Code of Practice: Service Charges in Commercial Property) in an effort to produce a clear set of recommendations which it is hoped, if implemented, will benefit all parties involved in commercial leases.

1 April 2007

Residential service charges are regulated by statute but until now commercial service charges have been governed by the terms of the individual lease only. The Code comes into effect for commercial/mixed use service charges commencing on or after 1 April 2007. It has been given Guidance Note status by RICS, meaning all chartered surveyors have to follow its provisions as best practice, justifying any departure from it. Existing leases cannot be overridden by the Code and the provisions of the lease will always prevail. It is therefore hoped parties to leases granted from 1 April will agree to bring leases in line with the best practice set out in the Code. The Code recommends managers comply with the Code as far as possible despite the constraints of the lease.

The Code

The Code’s objectives are that service charges should: be removed as an area of conflict between landlords and tenants; be “Not for profit, not for loss”; provide a budgeted/forecastable part of the tenant’s overheads, and; be cash neutral to the landlord’s income stream.

Various issues are addressed by the Code including the duty of care owed by landlords to manage the property, the best practice in management and written performance standards in contracts for services. The main problem areas identified in the landlord/tenant relationship were communication and transparency and the Code seeks to alleviate these issues by recommending tenants are provided with timely and regular information and are also included in the process.

Other recommendations within the Code include:

Leases should incorporate the right to change apportionments of service charges during the term.

  • There should be the ability to use ADR in service charge disputes.
  • Service charge provisions should be updated on a renewal under the Landlord & Tenant Act 1954.
  • Management fees should be an actual justifiable figure and not merely a percentage of the service charge.
  • Strict timescales must be adhered to.
  • The parties should recognise the landlord owes tenants a duty of care as it is their money he is spending.
  • Improvements/enhancement to the property should be allowed if they are cost effective and make economic sense to the tenants.

Further changes?

The 1954 Act provides that in renewals under the Act new leases may only depart from the terms of the existing lease if it can be demonstrated modern practice has changed and it is reasonable to incorporate the changes [O’May v City of London Real Property Company (1982)]. It is hoped as the Code is implemented more widely the courts will be persuaded that it reflects modern practice and provisions which refer to it should therefore be allowed in renewed leases.

A mezzanine floor can distort apportionments of service charges. At this stage little is known of the effect of such floors in terms of rent or service charges but the authors of the Code hope further research is carried out so best practice can be drawn up in this area.

What now?

It is hoped landlords, tenants and their professional advisers will endeavour to agree to align new leases with the Code when negotiating Heads of Terms. How to incorporate the Code within the service charge provisions in the lease will need careful consideration at the drafting stage. There may be additional problems with 1954 Act lease renewals and also new leases where all other leases in the building have identical service charge provisions. It has been suggested that in buildings where the leases come up for renewal at different times the existing service charge should remain until half of the leases have been renewed, at which time the Code can be incorporated by way of an additional schedule in all of the leases.

Jon Durham - January 2007

Date:  January 2007

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